Digital Commons Network^™

Etiquette Tips Some Implications Of 'Process Federalism', Calvin R. Massey

Faculty Scholarship

No abstract provided.

Civil And Human Rights And The Courts Under The New Constitution Of The Russian Federation, William W. Schwarzer

Faculty Scholarship

No abstract provided.

Rule 11 Entering A New Era, William W. Schwarzer

Faculty Scholarship

No abstract provided.

Two Social Movements, Thomas W. Merrill

Faculty Scholarship

Two social movements in the last fifty years have had a profound impact on our understanding of law and the role of the courts in our system of government. One is the civil rights movement. The demand for greater racial and gender equality and other civil rights has changed the face of the law in countless ways. For example, it has called into question – or at least required a fundamental revision in – the traditional understanding that the courts should interpret the Constitution and laws in accordance with their original meaning. Decisions such as Brown v. Board of Education …

Textualism And The Future Of The Chevron Doctrine, Thomas W. Merrill

Faculty Scholarship

The last decade has been a remarkable one for statutory interpretation. For most of our history, American judges have been pragmatists when it comes to interpreting statutes. They have drawn on various conventions – the plain meaning rule, legislative history, considerations of statutory purpose, canons of construction – "much as a golfer selects the proper club when he gauges the distance to the pin and the contours of the course." The arrival of Justice Scalia on the Supreme Court has changed this. Justice Scalia is a foundationalist, insisting that certain interpretational tools should be permanently banned from judicial use. What …

Panel Iii: International Law, Global Environmentalism, And The Future Of American Environmental Policy, Thomas W. Merrill

Faculty Scholarship

From an American perspective, environmental law has undergone two bouts of centralization in the past three decades. Round one occurred in the 1970's, as Congress federalized vast areas of environmental law that had previously been the province of state and local governments. Round two, which is still in an incipient phase, represents the effort to internationalize environmental law.

The question I would like to address is what can we learn from round one about what is likely to happen in round two. My answer, in a nutshell, is that the primary driving force behind the federalization of environmental law in …

The Market And The Community: Lessons From California's Drought Water Bank, Brian E. Gray

Faculty Scholarship

No abstract provided.

Are Rules Really Better Than Standards?, Joseph R. Grodin

Faculty Scholarship

No abstract provided.

Introduction, Joseph R. Grodin

Faculty Scholarship

No abstract provided.

Some Reflections About Justice Sullivan, Joseph R. Grodin

Faculty Scholarship

No abstract provided.

The Theories Of Federal Habeas Corpus, Evan Tsen Lee

Faculty Scholarship

No abstract provided.

What Happens When Mediation Is Institutionalized?: To The Parties, Practitioners, And Host Institutions, James J. Alfini, John Barkai, Robert Baruch Bush, Michele Hermann, Jonathan Hyman, Kimberlee Kovach, Carol B. Liebman, Sharon Press, Leonard Riskin

Faculty Scholarship

The Alternative Dispute Resolution Section of the Association of American Law Schools presented a program, at the 1994 AALS Conference, on the institutionalization of mediation – through courtconnected programs and otherwise. The topic is an important one, because this phenomenon has become increasingly common in recent years. Moreover, the topic seemed especially appropriate for the 1994 program, since Florida – the host state for the conference – was one of the first states to adopt a comprehensive statute providing for court-ordered mediation (at the trial judge's option) in civil disputes of all kinds. The move toward institutionalizing mediation has raised …

Violence Against Lesbians And Gay Men, Suzanne B. Goldberg, Bea Hanson

Faculty Scholarship

Faggot! Dyke! Pervert! Homo!" Just words? Or rhetoric that illuminates and fuels hatred of lesbians and gay men? How often are these words supplemented by the use of a bat, golf clubs, a hammer, a knife, a gun? Studies indicate that lesbians and gay men experience criminal victimization at rates significantly higher than other individuals and are the most frequent victims of bias crime.

Since lesbians and gay men live all across the country – in large cities, small towns, and rural areas – we can be targets of bias crime no matter where we live. From the attacks against …

War Powers: An Essay On John Hart Ely's War And Responsibility: Constitutional Lessons Of Vietnam And Its Aftermath, Philip Chase Bobbitt

Faculty Scholarship

I approached John Ely's' new book with the anticipation of delight, qualified by a certain apprehensiveness. Delight because Ely is almost alone among writers in my solemn field in his ability to write with humor; indeed, he writes in a style that reminds me of the marvelous Joseph Heller. There is no reason, I suppose, for constitutional law professors to be incapable of writing amusing and fresh prose or exposing a false syllogism with the light touch of juxtaposition rather than the heavy bludgeon of irony, but how rare this is! More importantly, Ely's arguments have the satisfying feel of …

Reflections Inspired By My Critics, Philip Chase Bobbitt

Faculty Scholarship

The crucial idea in constitutional law is legitimacy; the crucial idea in jurisprudence is justification.

For some time, the academic debate about U.S. constitutionalism has looked for justifications for our practices, believing this would confer legitimacy on them. In my work, I have endeavored to derive legitimacy from the practices themselves, reserving the task of justification for other purposes.

By showing the way in which legitimacy is established and maintained in a constitutional system like ours, I hoped to derive solutions to a number of classical questions, all of which, I believe, are at bottom questions about legitimacy and legitimation. …

Black People In White Face: Assimilation, Culture, And The Brown Case, Jerome M. Culp

Faculty Scholarship

No abstract provided.

Feminist Perspectives On The Ideological Impact Of Legal Education Upon The Profession, Katharine T. Bartlett

Faculty Scholarship

No abstract provided.

The Qur’An And The Common Law: Islamic Law Reform And The Theory Of Legal Change, Donald L. Horowitz

Faculty Scholarship

Part 1 of this article published at 42 Am. J. Comp. L. 233 (1994) is linked below. In Part 2 here, the author shows the powerful influence of common law methods on legal reasoning, on the reshaping of old Islamic law doctrines and the creation of wholly new obligations, and on the legal process in general. He then reevaluates the predominant approaches to legal change and makes the case for legal acculturation--a syncretic process by the the norms of one system infuse those of another, without necessarily undermining the latter's authenticity.

Impeachment And Rehabilitation Under The Maryland Rules Of Evidence: An Attorney's Guide, Paul W. Grimm

Faculty Scholarship

No abstract provided.

Bonding, Structure And The Stability Of Political Parties: Party Government In The House, Gary W. Cox, Mathew D. Mccubbins

Faculty Scholarship

The public policy benefits that parties-deliver are allocated by democratic procedures that devolve ultimately to majority rule. Majority-rule decision making, however, does not lead to consistent policy choices; it is "unstable." In this paper, we argue that institutions - and thereby policy coalitions -- can be stabilized by extra-legislative organization. The rules of the Democratic Caucus in the U.S. House of Representatives dictate that a requirement for continued membership is support on the floor of Caucus decisions for a variety of key structural matters. Because membership in the majority party’s caucus is valuable, it constitutes a bond, the posting of …

Contract Failure In The Market For Health Services, Clark C. Havighurst

Faculty Scholarship

Professor Havighurst examines the claim that the United States is overspending on health care. Finding much of the evidence inconclusive, he nevertheless finds one clear cause of allocative inefficiency to be unwise tax subsidies for the purchase of private health insurance. He avers, however, that a more serious problem is the market's failure to offer consumers a full range of health care choices, specifically low-cost options. Here, he makes the novel claim that overspending on health care is attributable to the failure of private contracts to specify the precise character and scope of the health services to be provided and …

Lost Opportunity: The Burger Court And The Failure To Achieve Equal Educational Opportunity, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.

Afterword: Shaw V. Reno, Robinson O. Everett

Faculty Scholarship

No abstract provided.

Still “Learning Something Of Legislation”: The Judiciary In The History Of Labor Law, Catherine Fisk

Faculty Scholarship

No abstract provided.

The Reversal Arbitration Board: An Adr Model For Resolving Intra-Corporate Disputes, Neil Vidmar, René Stemple Ellis, Geetha Ravindra, Thomas Davis

Faculty Scholarship

No abstract provided.

A Manifesto Concerning The Legal Protection Of Computer Programs, Jerome H. Reichman

Faculty Scholarship

No abstract provided.

The Alchemy Of Asset Securitization, Steven L. Schwarcz

Faculty Scholarship

No abstract provided.

Pap And Circumstance: What Jury Verdict Statistics Can Tell Us About Jury Behavior And The Tort System, Neil Vidmar

Faculty Scholarship

No abstract provided.

Sex, Lies, And Dissipation: The Discourse Of Fault In A No-Fault Era, Katharine T. Bartlett, Barbara Bennett Woodhouse

Faculty Scholarship

No abstract provided.

An Antidote To Anecdotes, Neil Vidmar

Faculty Scholarship

Reviewing, Frank A. Sloan, et al., Suing for Medical Malpractice (1993)